Kay v. the State.

• Court: Georgia Court of Appeals
• Writing for the Court: BARNES, Presiding Judge.
• Citation: Kay v. the State., 306 Ga.App. 666, 703 S.E.2d 108 (Ga. App. 2010)
• Decision Date: 29 October 2010
• Docket Number: No. A10A1224.,A10A1224.
• Parties: KAYv.The STATE.

306 Ga.App. 666

703 S.E.2d 108

10 FCDR 3655

KAY

v.The STATE.

No. A10A1224.

Court of Appeals of Georgia.

Oct. 29, 2010.

John G. Edwards, Valdosta, for appellant.Thomas C. Earnest, District Attorney, Mark C. Post, Assistant District Attorney, for Appellee.BARNES, Presiding Judge.

Richard Kay appeals his conviction of child molestation. He contends the evidence presented was not sufficient to sustain his conviction, the trial court erred by granting the State's motion in limine, and the trial court erred by denying his motion for new trial because his defense counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finding no error, we affirm his conviction.

1. When reviewing the sufficiency of evidence, “the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).” Dean v. State, 273 Ga. 806, 806–807(1), 546 S.E.2d 499 (2001). We review the evidence in the light most favorable to the verdict, giving deference to the jury's determination as to the proper weight and credibility to be given. Id. at 807(1), 546 S.E.2d 499. It is the jury's function to assess witness credibility, to resolve any conflicting evidence, and to determine the facts, not an appellate court. Butler v. State, 273 Ga. 380, 382(1), 541 S.E.2d 653 (2001). If competent evidence exists, though contradicted, to support the facts necessary to prove the State's case, we will not reverse the jury's verdict. Childress v. State, 251 Ga.App. 873, 876(2), 554 S.E.2d 818 (2001).

Viewed in the light most favorable to the verdict, the evidence shows that the eight-year-old victim told Department of Family and Children Services (“DFCS”) case workers that Kay had touched her “between the legs.” The interview, which was recorded and played for the jury, shows the victim saying that Kay touched her where he was not supposed to and that he touched her with his hand between her legs on top of her clothes more than once. At the trial, the victim was sometimes hesitant to testify, but did ultimately testify that Kay touched her between her legs with his hand.

Kay contends the evidence is insufficient because the victim initially recanted her allegations of molestation and then, upon being asked leading questions, testified that Kay touched her between her legs. The victim's video and her testimony in court, however, were sufficient to permit a rational trier of fact to find Kay guilty beyond a reasonable doubt.

2. Kay further contends the trial court erred by granting the State's motion in limine to exclude evidence regarding the victim's placement with DFCS. The motion sought an order by the trial court prohibiting the defense from “making any reference, either by way of opening statements, closing arguments, cross-examinations, direct examinations or other arguments including innuendo or suggestion in the presence of the jury concerning [the victim's mother's] past conduct and current location of the children....” In its motion, the State contended that it expected the defense to cross-examine the mother about her “alleged use of controlled substances” and her agreement with DFCS about the placement of her children. The State argued that absent evidence of the mother having been convicted of using drugs, such cross-examination would be improper impeachment and that the placement of the children was not relevant to any issue in the case. Kay does not make any claims on appeal concerning the impeachment issue.

On the first day of the trial, after the defense counsel disavowed any intention to use improper impeachment upon cross-examination, the trial court ruled that it would

be very alert tomorrow during [the defense's] opening and the conduct of the trial and stay on the edge of my chair so that I can nip it in the bud and I'm sure [the prosecutor] will be quick to object on anything that does come out. I'll issue a ruling and, certainly, you should not inject anything that's not relevant to this case and I think you know what they are. If it's there just to make anybody just look bad, not a felony conviction, just some bad stuff you want to get in—if it's a prior inconsistent statement about the statements she made here or she makes, then obviously, that will come in. If she says, “I've never had my children taken away, I'm a good mama, I've never had them put with DFACS” and that fact is true, if she opens that door, then perhaps, that becomes ripe for evidence. But otherwise, I don't see how that stuff is relevant. I'll put a ruling on the record tomorrow morning. I've got about four or five hours of material to go through tonight all because it kind of got in to me late in the day.

The next day the trial court ordered the parties not to present evidence or question witnesses about the placement of the children or the use of controlled substances, unless proper evidence was proffered prior to the inquiry.

A motion in limine is a pretrial motion which may be used two ways: (1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. (2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court's determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.

(Citation and punctuation omitted.) Harper v. Patterson, 270 Ga.App. 437, 441(3), 606 S.E.2d 887 (2004). Kay relies upon Hibbs v. State, 299 Ga.App. 723, 724–725(2), 683 S.E.2d 329 (2009), for the proposition that the trial court violated his right of cross-examination. In Hibbs we held that

[t]he confrontation clause of the Sixth Amendment grants criminal defendants the right to impeach the prosecution's witnesses by cross-examining them with regard to whether they are currently on probation for a juvenile offense or have an open or pending case in juvenile court, or whether they are currently committed to the custody of the Department of Juvenile Justice. The right of a defendant to cross-examine a state witness to show that the witness slanted his testimony in favor of the state in order to obtain more favorable treatment overcomes the state's interest in maintaining the confidentiality of juvenile court proceedings. This right to cross-examination is “subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation.”

Kay argues that the trial court's ruling restricted his defense counsel from cross-examining the victim and the victim's mother about the victim's desire to fabricate the allegation and testify favorably for DFCS and the State so she could remain with her mother instead of in the custody of DFCS. Hibbs thus has no application here.

The children's placement with DFCS was not relevant to any issue in the case, and nothing about the placement could show that either the victim or her mother had any reason to slant their testimony in favor of the State. Further, the trial court did not exclude any evidence completely. If Kay had relevant evidence to present or subjects about which to cross-examine any witness, he was only required to proffer the evidence before presenting it or asking questions about it. As Kay has not shown that he attempted to do so and that the matter was excluded from evidence, he has nothing to complain about. Moreover, as the victim's mother did not testify in the case, the trial court's ruling could not have restricted her cross-examination, and would not have prevented Kay from cross-examining the victim about any motive she had to fabricate her testimony. Nevertheless, he elected not to cross-examine her.

3. Kay contends a fatal variance exists between the indictment and the proof at trial. The indictment alleged that Kay “touched the vagina of [M.L.,] a child under 16 years of age, with intent to satisfy” his sexual desires. The evidence at trial was that Kay touched M.L. between her legs on top of her clothing.

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

(Citation omitted.) DePalma v. State, 225 Ga. 465, 469–470(3), 169 S.E.2d 801 (1969). Our courts do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396(3), 627 S.E.2d 579 (2006). Here the variance complained of did not subject the defendant to either of these dangers. Seabolt v. State, 234 Ga. 356, 216 S.E.2d 110 (1975); De Palma v. State, supra.

Although the evidence differed somewhat from the allegation in the indictment, we find no material difference. A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. OCGA § 16–6–4(a)(1). Further, our law does not require that “the State present testimony that precisely tracks the language found in the...